[2013] KEHC 52 (KLR)
The court found that while it was appropriate to grant the defendant both enlargement of time and leave to issue a third party notice, the affidavit of service did not comply with the mandatory requirements of the Civil Procedure Rules because it failed to name the person upon whom the third party notice was served....
Source-derived case information.
- Citation
- [2013] KEHC 52 (KLR)
- Parties
- Plaintiff: Elijah Mira Wainaina; Defendant: Interactive Media Services Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Case 185 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Enlargement of Time and Leave to Issue Third Party Notice
- Outcome
- Application for enlargement of time and leave to issue third party notice granted; service of third party notice found defective; order for re-service within 7 days.
- Judges
- JB Havelock
- Legal Topics
- Third Party Proceedings, Enlargement of Time, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elijah Mira Wainaina
Plaintiff
Interactive Media Services Limited
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Enlargement of Time and Leave to Issue Third Party Notice
Legal Issues
- 1 Whether the defendant should be granted enlargement of time to apply for leave to issue a third party notice.
- 2 Whether leave should be granted to the defendant to take out third party proceedings against the Music Copyright Society of Kenya.
- 3 Whether proper service of the third party notice was effected on the Music Copyright Society of Kenya.
Ratio Decidendi
The court found that while it was appropriate to grant the defendant both enlargement of time and leave to issue a third party notice, the affidavit of service did not comply with the mandatory requirements of the Civil Procedure Rules because it failed to name the person upon whom the third party notice was served. As a result, the court was not satisfied that proper service had been effected on the Music Copyright Society of Kenya. The court therefore ordered that the third party notice be re-served within seven days and extended the time for service accordingly. The decision was grounded in strict adherence to procedural rules governing third party proceedings and service of process.
Court Disposition
Application for enlargement of time and leave to issue third party notice granted; service of third party notice found defective; order for re-service within 7 days.
Orders
- Enlargement of time for the defendant to apply for leave to issue a third party notice granted until 10 February 2012.
- Leave granted to the defendant to take out third party proceedings against the Music Copyright Society of Kenya.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & ADMIRALITY DIVISION
MISC. CIVIL CASE NO. 185 OF 2009
ELIJAH MIRA WAINAINA …………………………………….. PLAINTIFF
VERSUS
INTERACTIVE MEDIA SERVICES LIMITED …………… DEFENDANT
R U L I N G
By a Chamber Summons dated 1 February 2012 filed herein on 3 February 2012, the Defendant herein applied for enlargement of time within which it had to apply for leave to issue a Third Party Notice to the Music Copyright Society of Kenya. The application came by way of Certificate of Urgency. The second head of the said Chamber Summons dated 1st February 2010 was that this Court be pleased to grant leave to the Defendant to take out Third Party proceedings against the said Music Copyright Society of Kenya.
As it would cause no prejudice to the Plaintiff herein, I granted enlargement of time within which the Defendant had to apply for leave to issue a Third Party Notice, on 3rd February 2012. Time was extended until 10 February 2012. At the same time, I granted the 2nd head of the Defendants’ Application being leave for it to take out 3rd party proceedings against the Music Copyright Society of Kenya. In so granting the above orders, I had not lost sight of the mandatory requirements of Order 1 Rule 15 of the Civil Procedure Rules 2010 which requires that any defendant who claims, inter alia, that he is entitled to a contribution or indemnity from any other person, not already a party to the suit, shall apply to Court for such leave within 14 days after the close of pleadings.
From an Affidavit of Service sworn by ARTHUR IMBUGA on 28 February 2012, I note that he served the Third Party Notice thereto attached on the Secretary at the reception of the officers of the Music Copyright Society of Kenya at Westlands, Nairobi. Although there is stamped on the return of the Third Party Notice, the rubber stamp of the Music Copyright Society of Kenya, the Affidavit of Service itself does not name the person upon whom the Third Party Notice was served. Such is contrary to Order 5 Rule 15 of the Civil Procedure Rules 2010 as read with Form No. 4 of Appendix A thereto.
Accordingly, I am not satisfied that proper service of the Third Party Notice has been made upon the Music Copyright Society of Kenya and would direct that the Society be re-served with the Third Party Notice within 7 days from the date hereof. Time for service of the Third Party Notice will be extended until then. Orders accordingly.
DATED at NAIROBI this 28th day of February 2013.
J. B. HAVELOCK
JUDGE